 There was no act of Congress, no major rule-making from a federal agency or
department. Nothing except the president’s pen — or in this case, his keyboard —
was necessary to postpone the law’s mandate that all American businesses provide
health insurance for their employees.
The move sent shockwaves through the media, and raised questions about whether
the White House had the legal authority to rewrite major pieces of legislation
and regulatory policy on the fly.
Perhaps that move shouldn’t have been so surprising. On a smaller scale, this
sort of thing happens almost every day.
CAN’T SEE IT, BUT ITS THERE: In the world of astrophysics, dark matter is a
theoretical type of matter that cannot be seen or otherwise detected with
telescopes, but is believed to make up the majority of all substance in the
universe. In much the same way, regulatory dark matter is difficult to detect or
track, but accounts for the majority of all federal rules and regs.
“Dark matter has completely changed the game,” Clyde Wayne Crews, a vice
president of policy for the Competitive Enterprise Institute, told Watchdog
Radio. “When you start digging into it, you see that Congress really has no idea
what the scope of this stuff is.”
Crews has spent years tracking federal regulations, but his most recent
undertaking is an attempt to understand the scope of the dark matter regulatory
state. The results are published in a new report published this week.
The numbers are staggering. There have been 777 executive orders issued since
1994, according to the Federal Register.
By comparison, there have been more than 500,000 informal “public notices”
issued by regulatory agencies of the federal government during the same period
of time.
In the world of astrophysics, dark matter is a theoretical type of matter that
cannot be seen or otherwise detected with telescopes, but is believed to make up
the majority of all substance in the universe. In much the same way, regulatory
dark matter is difficult to detect or track, but accounts for the majority of
all federal rules and regs.
Here’s how to understand what regulatory “dark matter” actually looks like, and
how it comes into existence.
[to top of second column] |
First, Congress passes a law like the ACA. Within that law, Congress
designates regulatory powers to certain federal agencies.
For example, the ACA included a new requirement that chain
restaurants provide customers with nutritional information on menus.
Congress wrote the broad parameters of that requirement into the
text of the ACA, but left the details up to the Food and Drug
Administration.
READ MORE: Dispute menu regulations, Americans are still getting
fatter
Then there’s things like the presidential decision in June 2013 to
postpone the individual mandate for one full year. That’s regulatory
dark matter, completely disconnected from the traditional lawmaking
process.
In making the decision to postpone the employer mandate, the
administration cited “the complexity of the requirements and the
need for more time to implement them effectively.”
But it doesn’t take the authority of the White House to create dark
matter regulations. There are 438 federal agencies with the ability
to make rules, and they can really crank them out. More than 2,600
have been issued just this year, Crews says.
Under the Administrative Procedure Act of 1946, Congress established
the process of public notice for proposed rulemaking, including the
opportunity for public input and a 30-day period before rules
becomes effective. But the APA’s requirement of publishing a notice
of proposed rulemaking and allowing public comment does not apply to
“interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice.”
In other words, dark matter regulations are exempt from almost any
oversight and have little public accountability. They are the
product of “pen and phone” authority, Crews says.
“It’s a real breakdown in representative democracy, in my view,” he
said.
Click here to respond to the editor about this article
|
